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Pre-mediation Summaries: Why Bother?

July 11, 2013

How would you feel about voluntarily undergoing major surgery with a surgeon who knew nothing about you prior to surgery?  Is it just possible your surgeon (and you) might be at a distinct outcome disadvantage compared to one who had advance knowledge of you and your surgical condition?

Although specifically ordered by most courts as a part of any court-ordered mediation and almost always complied with or voluntarily submitted, usually in great detail, by most top attorneys, pre-mediation summaries, including for the pre-mediation preparation of the Mediator*, remain sorely under-utilized by far too many lawyers in far too many mediations.

(*Note:  There are other valuable pre-mediation summaries than the one to your mediator, equally important as pre-mediation tools for your greater success.  But they will become a separate subject for another day.)

I think I know why, at least in some situations, having been a busy complex trial lawyer myself for a very long time prior to dedicating myself in later years to non-trial resolution.  Sometimes you simply run out of time due to “more important’ commitments.   Such an omission is excusable, occasionally.

But I also wonder if those who, routinely, do not “bother” to send one really understand how much they are missing or even “losing” simply due to this singular omission.  I also wonder how many of these same lawyers would similarly voluntarily pass on any similar opportunity to educate their judge prior to a hearing?

Good mediators, like good judges, far prefer to have SOME idea of the issues they will be asked to assist upon well prior to any formal proceeding.   Among other reasons, many mediators, like judges, mediate the entire spectrum of legal issues in varying types of litigation.  As such, resolution options to be considered also range greatly.  And, the more time given to any mediator to understand the parties, their counsel, their issues, the history of negotiation, the timeliness of the mediation and a hundred other mini-factors, the better.

And, thus the better for the parties, themselves!

Mediators are paid, usually, by the hour.  And, many have no problem charging you for every minute of the extra time required and consumed in formal mediation to “learn” enough about your dispute to help you.  But, most, likely having been good lawyers themselves, pride themselves in making good decisions (and giving good mediation direction) based upon a firm grasp of the applicable fact and law in the most timely manner possible.

It is difficult enough to assist parties who have not been able to assist themselves.  It is doubly so when you must “create” new ideas and strategies with little or no prep time.  And, unless your mediator is nothing more than a message carrier, they will need as much advance notice as possible to be as creative as possible.

If you are lucky, you will also have a mediator who will try to speak with the counsel for the parties prior to mediation, time permitting.  This pre-mediation, confidential, direct discussion is invaluable to the mediator in helping the parties.  (Another whole topic, also for another day.)  However, despite the additional value of this effort by your mediator, it can never supplant the advantage to the counsel of the party whose pre-mediation summary is already in the hands of that same mediator, who has studied the basics and who then can use this additional limited direct conversation for more direct and specific planning.

What is in such a “typical” summary?  Why is it so important?

Start with something simple.  Who is your client?  Simply, letting your mediator know his/her name or if a representative, their position, allows that mediator to immediately plan a technique for bonding with them as you begin your formal session.  Remember, ultimately the client must also trust the mediator.!

Something about your opposition party(s) and their counsel is always helpful.  This is a confidential communication and a wonderful time to alert your mediator of personal or professional conflicts, present or past, that may affect your pending mediation.  A skilled mediator can remove personal conflicts from hampering your success at mediation.

The narrative of the case, including the important dates and the issues in dispute are critical.  Try to remember the difficult time you had on your first meeting with your client.  Keeping dates and important names in context is critical to understanding any narrative.

If the law is unusual or critical to your position, such information is also critical to your mediator.  Fact can be negotiated.  Law usually cannot.  Many mediators, time permitting, will even do some research to assist themselves in knowing fully the legal issues.  And, how to avoid bogging down due to legal conflicts.

What is it that you wish the mediator to resolve?  Other than a total resolution, of course, what other issues are valuable for you to obtain through mediation?  You know my belief that mediation is an extremely efficient and inexpensive form of discovery, even if resolution is not then possible.

What is the history of the negotiations, if any?  Obviously, I am a fan of proposals for settlement/offers of judgment and the additional weight given such negotiations.  Your mediator needs to know the difference between verbal and written negotiations and proposals for settlement, expired or not, among other differences.  Recomnendations can be formulated as to initial offers and pacing.   Most of all, however, wasting time “re-plowing old ground” can be avoided.  If your mediator can compare both parties “recollections” of the negotiation history, no time need be wasted in an error in memory, for example.

What is the legal process history?  What trial date or other impending dates are pertinent to your issues or resolution.  “Coming Pain” is what makes mediation work.  Your mediator needs to know what events are pressing either side.

Other than your client, who else will be attending?  The mix of participants is critical to mediation success.  Will there be any attendance issues?  Remember, unless you send a courtesy copy to your mediator, he/she does not (presently) receive a copy of any Certificate of Authority (i.e., who is coming) now required  in Florida.

Like the index of a book (or the dust cover “teaser”), these noted minimums and every bit of other advance information you deem important is critical to be known, in advance, by any good mediator!

However, if it is still a “bother”,  what is your loss by NOT sending your summary?  What have you missed?

Maybe not much (except a loss of valuable negotiation time), IF your opposition also did not “bother”.

But if he/she did “bother”, guess who now has to play catchup with the facts, the law, the weight of the evidence (yes, mediators do at least think of these things in formulating their recommendations) and a strategy for YOUR benefit.

And, while your opposition is using their time to carry out their negotiation plan, you are using your time to educate your mediator sufficiently to even get to your negotiation plan!

But, most of all, what does it say really about your readiness for your mediation?

In many instances, sadly, your lack of a pre-mediation summary to your mediator may make not one iota of difference in the outcome of your mediation.  After all, unless both sides have a desire to find resolution, mediation has little chance.

Why, then,  bother with a mediation summary for your mediator?

Because, trust me, if there is a resolution at mediation, more likely than not the party whose counsel timely sent the most complete pre-mediation summary, also got the best deal for his/her client!  And, if there is no resolution, such a failure may be traced back directly to the simple omission of this critical pre-mediation tool.

Dan, from Sarasota, Florida.

2 Comments leave one →
  1. Sparky's permalink
    July 11, 2013 1:33 pm

    Dan,

    Another great article! You write about everything that I have understood and wish others appreciated more.

    Thank you for putting these lessons into words and sharing them.

    Yours truly,

    Alyson M. Innes (407) 718-8727

    Please excuse any shortcuts and typographical errors as this was sent from my phone. Thank you.

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  1. Your All-Important Pre-Mediation Summary: Seven Other Valuable Uses! | Honeywell Mediation

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